Ill. Judge Seeks to Reopen $10.1 Million “Light” Cigarette Lawsuit

May 23, 2007

A judge whose $10.1 billion judgment against Philip Morris USA in a lawsuit over light cigarettes was thrown out on appeal is asking a court whether he can revive the case.

Madison County Circuit Judge Nicholas Byron this month asked the Mount Vernon-based 5th District Appellate Court of Illinois to rule whether he has authority to reopen the lawsuit, citing possible new evidence stemming from a separate tobacco case pending before the U.S. Supreme Court.

Byron ruled in favor of smokers in March 2003, saying that Philip Morris, now the nation’s biggest cigarette maker, misled customers into believing they were buying a less harmful cigarette.

That lawsuit, involving 1.1 million people who bought “light” cigarettes in Illinois, claimed Philip Morris, a unit of New York-based Altria Group Inc. , knew when it introduced such cigarettes in 1971 that they were not healthier than regular cigarettes. But the company hid that information and the fact that light cigarettes actually had a more toxic form of tar, the lawsuit claimed.

But the state’s Supreme Court overturned Byron’s ruling, saying the Federal Trade Commission allowed companies to characterize or label their cigarettes as “light” and “low tar,” so Philip Morris could not be held liable under state law even if such terms could be found false or misleading.

The U.S. Supreme Court last November let that ruling stand and Byron dismissed the case the next month.

But the attorney in that suit, Stephen Tillery of St. Louis, now says his original argument is supported by the U.S. solicitor general in a separate case before the nation’s high court. Paul Clement _ the Bush administration’s top Supreme Court lawyer _ said in the new casethat the FTC never authorized or ordered Marlboro Lights to be labeled as “lights” or use the words “lower tar and nicotine.”

“There is no question the Supreme Court of Illinois got it wrong when it said the words were authorized by the FTC,” Tillery said Monday. “The question now is what the courts can do about it.”

Byron told The Associated Press on Monday he could not ethically discuss the matter publicly.

Former Illinois Gov. James Thompson, an attorney representing Philip Morris, claims the appellate court has no authority to decide whether the case can be reopened and last week asked the Illinois Supreme Court to “put a stop once and for all to plaintiffs’ futile efforts to resurrect their case.”

“Only this court has the power to set the circuit court straight,” Thompson wrote in his filing with the Supreme Court.

Philip Morris considers the lawsuit “over,” William Ohlemeyer, Philip Morris’ vice president and associate general counsel, said in a statement Monday.

Byron’s inquiry about reviving the case “has threatened to plunge (Philip Morris USA) once again into lengthy and expensive litigation, which can result in only one conclusion: that the dismissal of plaintiffs’ claims ordered by this (state Supreme) Court must stand,” Thompson wrote on the company’s behalf in his legal filing last week.

Odds of reopening the case are long because the state Supreme Court ordered it dismissed and the U.S. high court declined to consider the appeal, said J. Steven Beckett, director of trial advocacy at University of Illinois’ law school.

“If you or I had a judgment of $10.1 billion, we’d probably do anything possible to keep it alive. I think that’s what this really represents,” Beckett said Monday. “In many respects, this is grasping at legal straws. This case is pretty much dead in the water, and it would take a legal second coming of some kind for this to be revived. I just don’t see it at all.”


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